Joint Committee On Human Rights First Report


FIRST REPORT


The Joint Committee on Human Rights has agreed to the following Report:—

HOMELESSNESS BILL


  1. The Homelessness Bill (Bill 2 of this Session) was introduced to the House of Commons on 26 June. It received its Second Reading on 2 July and was reported from Standing Committee A without amendment. It completed its report stage and Third Reading in the Commons on 22 October.

  2. When we examined the Bill, clause 13 (which retains that number in the Bill as first printed by the House of Lords) gave rise to certain concerns in relation to human rights. The clause seeks to introduce a new section 160A to the Housing Act 1996. The new section would prevent a local housing authority from allocating housing accommodation to four groups of people. These are—

  • People subject to immigration control, unless they are members of a class prescribed by regulations made by the Secretary of State who cannot include people who are excluded from entitlement to housing benefit under section 115 of the Asylum and Immigration Act 1999.[4]

  • Other persons from abroad who are members of classes prescribed by regulations made by the Secretary of State.[5]

  • Any person who has 'been guilty of unacceptable behaviour serious enough to make him unsuitable to be tenant of the authority'.[6]

  • People (including partners, children and other dependants) who would be housed jointly with a person falling within the categories above.[7]

  • 3. We felt that there was a significant risk that in certain circumstances the provisions could only be given effect in such a way as to give rise to an incompatibility with—

  • the right to be free of inhuman or degrading treatment under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR);[8]

  • the right to respect for private and family life (ECHR Article 8);[9]

  • the right to be free of discrimination in relation to the enjoyment of Convention rights (ECHR Article 14[10] taken together with ECHR Articles 3 and 8);

  • the equal right to housing (International Convention on the Elimination of Racial Discrimination (ICERD), 1966, Article 5(e)(iii));[11] and

  • the right to adequate housing (International Covenant on Economic, Social and Cultural Rights (ICESC), 1966, Article 11(1)).[12]

  4. The Chairman therefore wrote on 1 September 2001 to the Secretary of State for Transport, Local Government and the Regions asking five questions.

  • What steps would be taken to ensure that the provisions in clause 13 of the Bill do not cause any person to be a victim of a violation of the right to be free of inhuman or degrading treatment contrary to ECHR Article 3.

  • What factors satisfied him, when making the statement of compatibility in respect of the Bill under section 19 of the Human Rights Act 1998, that any impact of the provisions of clause 13 of the Bill on the right to respect for private and family life would be a proportionate response to a pressing social need to pursue one of the legitimate aims in ECHR Article 8(2).

  • What factors satisfied him, when making the statement of compatibility in respect of the Bill under section 19 of the Human Rights Act 1998, that any impact of the provisions of clause 13 of the Bill on persons from abroad would not amount to discrimination within the meaning of ECHR Article 14.

  • Whether, and if so why, he considered that the implementation of the provisions of clause 13 of the Bill would conform to the United Kingdom's international obligations under Article 5(e)(iii) of ICERD and Article 11(1) of ICESC, 1966.

  • Whether any other representations had been received on human rights matters in relation to the Bill.

We are grateful for the very detailed and informative response, which was contained in a memorandum attached to a letter of 11 October 2001 to the Chairman from Lord Falconer of Thoroton, Minister for Housing, Planning and Regeneration.[13] The memorandum has two main themes.

  5. First, the Department argues that the state is entitled in international law to control the entry of non-nationals to its territory, and to restrict the entitlement of such people to non-contributory benefits. This includes access to limited social resources such as housing stock, in relation to which demand significantly outstrips supply (subject to the requirements of the European Convention on Human Rights and the 1951 Geneva Convention on the treatment of refugees). Distinguishing for this purpose between nationals and non-nationals, and between nationals of countries with which it has close links and those of other countries, involves no change in Government policy. It is said that the Government can be regarded as having an objective and rational justification for differential treatment. Similar considerations are said to provide objective and rational justifications for differences of treatment which would satisfy ICERD and ICESC.[14]

  6. We accept that the Government's argument in support of the compatibility of the policy with the United Kingdom's human rights obligations is a tenable one. Nevertheless, at present we retain doubts as to the compatibility of the policy with human rights (particularly the right of immigrants who have been admitted to the country to be free from discrimination). We may wish to examine this general issue in greater depth at a later date in relation to the obligations of the United Kingdom under ICERD and ICESC, bearing in mind that the United Nations Committee on Economic, Social and Cultural Rights has observed that—

    The right to adequate housing cannot be viewed in isolation from other human rights contained in the two International Covenants[15] and other applicable international instruments. Reference has already been made to the concept of human dignity and the principle of non-discrimination.[16]

  7. Secondly, the Department argues that the provisions of clause 13 of the Bill must be seen in the context of a range of other benefits and types of support available to homeless and destitute people. These include support for children under the Children Act 1989, support for people in urgent need under the National Assistance Act 1948, and support for asylum seekers from the National Asylum Support Service.[17] In the light of these other sources of support, it is argued that the new provisions contained in clause 13 are compatible with the United Kingdom's human rights obligations.

  8. We accept the need to assess the human rights compatibility of clause 13 of the Bill in the light of the whole range of sources of support for people in need of housing. We also accept that the argument in the memorandum about the compatibility of the provisions in clause 13 is generally a tenable one. However, we remain concerned that possible loopholes in the network of support may lead to people suffering degrading treatment by reason of homelessness affecting their health and welfare, or a failure of respect for their home and family life. We are particularly concerned about three potential problems.

  9. First, we accept that a person who has been offered housing and has refused it, or has refused to co-operate with efforts to assist him or her, can be seen as largely responsible for any deterioration in health which results.[18] However, it is important that the housing offered should be appropriate to the needs of the homeless person or family. It would be quite wrong for people to be treated as being responsible for their own homelessness by reason only of refusing accommodation which is unsuitable by reason of their family circumstances, health or disability, or similar factors. As the United Nations Committee on Economic, Social and Cultural Rights has observed in relation to Article 11(1) of ICESC—

    The concept of adequacy is particularly significant in relation to the right to housing since it serves to underline a number of factors which must be taken into account in determining whether particular forms of shelter can be considered to constitute adequate housing for the purposes of the Covenant.

The Committee included the following in a non-exhaustive list of such factors: legal security of tenure; availability of services, materials, facilities and infrastructure; affordability; habitability; accessibility in the light of the personal circumstances of the person to be housed; location; and cultural adequacy.[19] These factors should be kept in mind when deciding whether a person is to be regarded as responsible for his or her own homelessness by reason only of having refused an offer of accommodation.

  10. Second, in relation to the National Assistance Act 1948, we note that the Government itself, in paragraph 7.1.7 of its memorandum, is not able to give a categorical assurance that assistance under the Act would be available to all those who might otherwise be left wholly destitute. We accept, as the memorandum argues, that it is possible that such provision might be available on the basis of the interpretation of section 21(1A) of the Act by the Court of Appeal in O. v. Wandsworth London Borough Council; Bhikha v. Leicester City Council.[20] However, we consider that in a matter of such importance a person's entitlement to support should be made absolutely clear on the face of the legislation, rather than being left uncertain in the hope that judicial interpretation will resolve the problem satisfactorily. In the present state of the law, we are not satisfied that the National Assistance Act 1948 provides an adequately reliable assurance that immigrants who are unable to leave the country because of a risk of death, torture, or inhuman or degrading treatment abroad will be protected against homelessness and destitution in circumstances which would engage the right to be free of degrading treatment under Article 3 of the ECHR.

  11. Third, we recognise that local authorities have duties to provide support for children in need under Part III of the Children Act 1989.[21] However, there are circumstances in which adult children of the family, too old to be the subject of duties under the 1989 Act, cohabit with parents. If they occupy accommodation of which one of the parents is the tenant, and that parent behaves in such a way as to be treated as unsuitable to be a tenant of the housing authority, the child's education and social life may be disrupted by homelessness and a need to move to a different area. There is no guarantee that the adult child or other members of the family will be allowed to take over the tenancy from the parent who is deemed to be unsuitable to be a tenant. We are concerned that the effect of clause 13 of the Bill may be to interfere unacceptably with the right to respect for the private life and home (under Article 8 of the ECHR) of adult children and other members of the family to whom no duty is owed under the Children Act 1989. We consider that this should be borne in mind when deciding how to deal with the families of tenants who fall to be treated as unsuitable.

  12. Despite these anxieties, we are satisfied that it should in practice be possible to operate the proposed new section 160A of the Housing Act 1996 in a manner which is compatible with Convention rights under the Human Rights Act 1998. No other aspect of the Homelessness Bill seems to us to give rise to a serious risk of incompatibility with a Convention right. We therefore consider that the Secretary of State was justified in making the statement of compatibility under section 19 of the Human Rights Act 1998 in respect the Homelessness Bill. We remain concerned about the extent to which the proposed new section 160A would be compatible with the obligations of the United Kingdom under other international human-rights treaties. We have drawn these matters the attention of each House, and we may wish to examine them in more detail in the future.


4   New section 160A(1)(a) and (3) of the Housing Act 1996 Back

5   Section 160A(1)(a) and (5) Back

6   Section 160A(1)(b) and (7), interpreted in the light of (8) Back

7   Section 160A(1)(c) Back

8   Article 3 provides: 'No one shall be subjected to torture or to inhuman or degrading treatment or punishment.' Back

9   Article 8 provides: '1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.' Back

10   Article 14 provides: 'The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.' Back

11   Article 5 of ICERD, so far as relevant, provides: '...States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:...(e) Economic, social and cultural rights, in particular:...(iii) The right to housing;...' Back

12   Article 11(1) of ICESC provides: 'The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.' Back

13   See Appendix. Back

14   See paras. 7.3.2 and 7.4.1-7.4.5 of the memorandum. Back

15   This is a reference to the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. Back

16   Committee on Economic, Social and Cultural Rights, The Right to Adequate Housing (Article 11(1) of the Covenant), General Comment No. 4 on the International Covenant on Economic, Social and Cultural Rights (1991), para. 9 [footnote added]. Back

17   See paras. 7.1.2, 7.1.7 and 7.1.8 of the memorandum. Back

18   Even if the harm suffered is serious enough to amount to inhuman or degrading treatment for the purpose of Article 3 of the ECHR, the state is not responsible for the individual's failure to take advantage of opportunities to improve his or her situation. See O'Rourke v. United Kingdom, Eur. Ct. HR, App. No. 39022/97, Admissibility Decision of 26 June 2001, unreported. Back

19   Committee on Economic, Social and Cultural Rights, The Right to Adequate Housing (Article 11(1) of the Covenant), General Comment No. 4 on the International Covenant on Economic, Social and Cultural Rights (1991), para. 8. Back

20   (2000) 33 H.L.R. 419, C.A. Back

21   See particularly Children Act 1989, s. 17. Back


 
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